Green v. State

• Citation: 154 Ind. 655,57 N.E. 637
• Parties: GREEN v. STATE.
• Decision Date: 29 May 1900
• Court: Indiana Supreme Court

154 Ind. 655

57 N.E. 637

GREEN

v.STATE.

Supreme Court of Indiana.

May 29, 1900.

Appeal from circuit court, Clark county; James K. Marsh, Judge.

George Green was convicted of murder, and he appeals. Reversed.

L. A. Douglass and H. W. Phipps, for appellant. H. C. Montgomery and Bomar Traylor, for the State.

BAKER, C. J.

Appellant was convicted of murdering his wife. He complains of the overruling of his motion to quash the indictment, and of the refusal to grant him a new trial.

It is urged that the indictment fails to show with sufficient certainty the means by which the mortal wound was inflicted. The indictment avers that appellant killed Lizzie Green by wounding her “with a certain dangerous and deadly weapon, to wit, a revolver, then and there loaded with gunpowder and leaden ball, which revolver he, the said George Green, then and there had in his hands, and discharged at, against, and into the person of the said Lizzie Green,” thereby inflicting a mortal wound, of which she died. The uncertaintyis said to arise over the question whether the deceased was struck with the revolver or the leaden ball with which the revolver was loaded. Appellant relies upon the case of Littell v. State, 133 Ind. 577, 33 N. E. 417. The indictments are not exactly parallel; but, if they were, the method of criticism employed in Littell's Case is too fanciful and strained to be accepted as a precedent. Compare Keyes v. State, 122 Ind. 527, 23 N. E. 1097, and Bass v. State, 136 Ind. 165, 36 N. E. 124. To discharge a loaded revolver does not mean to throw the revolver as a missile from the hand, but to free the revolver of the missile with which it is loaded, by firing.

Moran, father of deceased, testified that between 8 and 9 o'clock in the evening he was at his daughter's house, with her and her infant children; that some one outside called, “O, Mis' Lizzie Green, come out; I want to see you;” that his daughter, with a babe in her arms, stepped to the door, and asked, “Who are you?” that the person shot, and the witness heard the sound of retreating footsteps. “Q. Now, what did she do when the shot was fired? A. She hallooed, ‘O, Lord–”’ Defendant objected to anything she said, on the ground that it was not part of the res gestæ. The court overruled the objection, and the defendant excepted. “Q. Now, go on, uncle. A. She said, ‘O, Lord; George has shot me!”’ Motion to strike out overruled. Exception. On cross-examination, the witness said that when the shot was fired his daughter staggered back about five feet, dropped the baby on the bed which stood near the door, and sank upon her knees, before making the above exclamation. No motion to strike out was predicated on the cross-examination. But, whether the exclamation was made at the door or by the bed, it was plainly the event speaking through the wounded person, and not the wounded person giving an account of a past occurrence. In all cases such as this, it is obvious that the shot has been fired, and the principal act is at an end from the standpoint of the assailant, before the assailed can make any declaration. The admission of the declaration depends upon its being so connected in time and circumstances with the principal act that the assailed appears to be the spontaneous spokesman of the act, and not the deliberate utterer of an afterthought. Gillett, Ind. & Col. Ev. c. 9; Binns v. State, 57 Ind. 46;Jones v. State, 71 Ind. 66; Railroad Co. v. Buck, 116 Ind. 566, 19 N. E. 453; and cases cited on page 576, 116 Ind., and page 458, 19 N. E.;Hall v. State, 132 Ind. 317, 31 N. E. 536;Parker v. State, 136 Ind. 284, 35 N. E. 1105;Shoecraft v. State, 137 Ind. 433, 36 N. E. 1113.

A dying declaration, in which Mrs. Green stated that appellant was the person who shot her, was admitted in evidence over appellant's objection. It is contended that the proof was not clear that the declarant was under the sense of certain and speedy death. Such proof is necessary, but it may be afforded by circumstances, even in the absence of any express statement to that effect by the declarant. Gillett, Ind. & Col. Ev. §§ 195-197. The declaration in question was made the night before Mrs. Green died. The witness testified that the declarant said she knew she could not live long, and that declarant seemed to be very weak, and “had to stop between her talk.” The declaration was reduced to writing, and signed. It contained these statements: “I realize that I must die; that I am mortally wounded. * * * I say, as I am about to die, that George Green shot me.” All of this evidence was first for the court to hear in determining the admissibility of the declaration; it was competent; it was uncontradicted; and its sufficiency was such as to satisfy the court that the declaration should be admitted. No error appears in the ruling. Gillett, Ind. & Col. Ev. § 202.

Appellant also urges that the court should have excluded from the jury the declarant's statement as to her sense of impending death. After the court had decided that the declaration as to the slaying and the slayer was admissible, the jurors were entitled to know all of the circumstances surrounding the declarant, in order to determine what credit should be given to the declaration. Gillett, Ind. & Col. Ev. § 203.

Appellant further objects to the declaration because it does not fix the date of the tragedy. The occasion was amply identified.

Appellant was permitted to prove a dying declaration in which Mrs. Green stated that Clara Brown was the person who shot her. Appellant offered to prove statements, made by deceased at various times during the two weeks she languished from the wound, that were contradictory to the dying declaration proved by the state, and to the effect that the fatal shot was fired by Clara Brown. The state objected because the preliminary proof showed that the offered statements were neither part of the res gestæ nor dying declarations. Appellant was entitled to this evidence as an impeachment of the dying declaration introduced by the state. Gillett, Ind. & Col. Ev. § 204; People v. Lawrence, 21 Cal. 368;State v. Lodge, 9 Houst. 542, 33 Atl. 312;Morelock v. State, 90 Tenn. 528, 18 S. W. 258;Carver v. U. S., 164 U. S. 694, 17 Sup. Ct. 228, 41 L. Ed. 602; 10 Am. & Eng. Enc. Law (2d Ed.) 384. Inasmuch as a defendant has no opportunity at the trial to have a cross-examination as to the subject-matter of the dying declaration, it would be most unjust to deprive him of the right of impeachment by contradictory statements, and the right would be lost to him if he were required to lay the usual foundation for that kind of impeachment. But the state claims that appellant had the benefit of the contradiction by proving the dying declaration that inculpated Clara Brown. That declaration was primary and direct evidence in favor of appellant, and its admission was not at all dependent upon the introduction of the other dying declaration by the state. True, the one dying declaration contradicts the other. But the same is true of much direct evidence of litigants. And the fact that one party has direct evidence that is in conflict with his adversary's does not curtail his right to discredit his adversary's direct evidence by impeachment.

The mortal wound was inflicted with a bullet from a small-caliber revolver. Moran, the deceased's father, testified that he did not recognize the voice of the person who called his daughter to the door; that it did not sound like a man's voice, nor like a woman's, but seemed to be feigned. In her dying declaration introduced by the state, Mrs. Green said her assailant had a man's hat pulled down over the eyes and wore a long overcoat. Appellant, after introducing the dying declaration that named Clara Brown as the assassin, offered to prove that Clara Brown a few days before the murder took a small-caliber revolver to a gunsmith to be repaired; that she got the revolver from the smith on the day of the murder; that she asked the smith if the revolver was in perfect repair, and would snap a cartridge every time. Appellant offered to prove by a neighbor of Clara Brown that a few days before the murder Clara Brown said to the witness that she was jealous of Charley Mitchem and Lizzie Green; that she did not intend to have Charley Mitchem going around with Lizzie Green;...